Report No. 54

Chapter 1H

Special Proceedings

Introduction

1H.1. Part of the Code, sections 89 to 93, deal with special proceedings.

Section 91(1)

1H.2. Section 91(1) authorises the filing of a suit in respect of a public nuisance by the Advocate-General, or by two or more persons who have obtained the written consent of the Advocate-General. It appears to us that the Advocate-General should not be troubled with such questions. It is enough if the leave of the court is obtained.1 In the coming years, problems of pollution of water and air and the emergence of new and unknown hazards to health are likely to require considerable attention. And, until a full-fledged environmental law takes shape, section 91 could serve a useful purpose in combating these kinds of nuisance.

1. As to appeal against an order under section 91, see discussion relating to section 104, para. 1K.7, infra.

1H.3. It also appears to us that the procedure allowed under this section could be usefully extended to wrongful acts other than public nuisance which affect the public. As illustrations of such wrongful acts, we may refer to fraudulent practices of traders, which harm consumers in general.

Recommendation

1H.4. Accordingly, we recommend that section 91 should be revised as follows:-

"(1) In the case of a public nuisance, or of any other wrongful act affecting the public, two or more persons, having obtained the leave of the court, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case".

Section 92

1H.5. In the earlier Report,1 attention was drawn to the legislation regarding cy pres undertaken in England, and to the analogous provisions in the Bombay Public Trusts Act, 1950 (Bombay Act 29 of 1950), (which have been followed by certain other States also). Some difficulties were felt in England by virtue of the limited scope of the cy pres doctrine, under which the court had power to direct the application of the income to another purpose only in certain specified cases, for example, where the original object had failed.

1. 27th Report, note on section 92.

1H.6. Now, there might be cases where it would be desirable to alter the very purpose of application as mentioned in the trust instruments, because the original objects have been adequately provided for by other means, or have ceased to provide a suitable method of using the property, or have become obsolete or useless or prejudicial to the public welfare or are not substantially beneficial to the class of persons for whom the endowment was intended originally.

1H.7. In England, the Nathan Committee1 went into great detail in this question. The Committee was satisfied that the most urgent need was to enable the Charity Commissioners to give timely assistance to those trustees who were administering trusts "no longer adapted to modern conditions". Since the alteration of the objects of charities (where the objects can still be executed) could only be done by a statutory power the Committee recommended suitable legislation regarding cy pres.

1. Report of the Committee on the Law, etc., relating to Charitable Trusts (1959) Cmd. 8710, paras. 299, 316, 320, 329.

1H.8. The Charities Act,1 has carried out, to a large extent, the recommendations of the Nathan Committee. Briefly stated, under section 13 of that Act, the original purpose of a charitable gift can be altered to allow the property to be applied cy pres, where the original purpose has been fulfilled or cannot be carried out according to the directions and the spirit of the gift, or provides the use for part only of the property, or where the property available by virtue of the gift and other property applicable for similar purposes can be used in conjunction, or where the purposes were laid down with reference to an area which has ceased to be a unit or a class of persons which has ceased to be suitable or where the original purposes have been adequately provided for by other means or ceased (as being useless or harmful to the community) to be in law charitable or ceased to provide a suitable and effective method of using the property available by virtue of the gift. Thus, a failure of the original purpose is not, now the only ground for cy pres.

1. Charities Act, 1960 (8 & 9 Eliz. 2, C. 58), section 58.

1H.9. Attention may also be drawn to section 56 read with section 55 of the Bombay Public Trusts Act,1 where under, on an application by the Charity Commissioner etc. the court can sanction an alteration of the original object of the public trust. It provides that, if the court is of opinion that the "carrying out of such intention or object is not wholly or partially expedient, practicable, desirable necessary or proper in the public interest,2 the court may direct the property or income of the public trust or any portion thereof to be applied cy pres to any other charitable or religious purpose.

1. Bombay Public Trusts Act, 1959.

2. The Hindu Religious Endowments Commission (1960-62), Report, p. 89, Chapter VI, para. 29 has also recommended adoption of section 13-14, Charities Act, 1960.

1H.10. The previous Commission stated-

"The matter can be considered in detail when the Law of public trusts is revised".

1H.11. The doctrine of cy pres can, even now, be applied to suits under section 92. But its scope will, presumably, be limited by the rules of the English Law, as unmodified by statute.

1H.12. We agree with the above recommendation. However, it appears to us that it would be desirable to make the amendment regarding the scope of cy pres without waiting for revision of the law of public trusts.

1H.13. We are, further, of the view that the provision requiring leave of the Advocate-General should be replaced by a provision requiring leave of the Court. Obtaining the leave of the Advocate-General takes time, and the considerations which he takes into account can be taken into account by the court as well. Since jurisdiction under the section is vested in the principal civil court of original jurisdiction, it can be expected that the discretion to grant leave under the amended section will be exercised in a responsible manner.1

1. As to appeal see section 104 and discussion relating thereto, para. 1K.7, infra.

1H.14. We notice that in its application to public trusts falling within special laws or governed by local laws, those laws contain provisions substituting a different procedure regarding leave. An example in point is the provision in the Wakfs1 Act, quoted below:-

"55.(1) A suit to obtain any of the reliefs mentioned in section 14 of the Religious Endowments Act, 1893 (XX of 1893) and in section 92 of the Code of Civil Procedure, 1908 (Act V of 1908), relating to any wakf may, notwithstanding anything to the contrary contained in those Acts, be instituted by the Board without obtaining the leave or consent referred to in those Acts.

(2) No suit to obtain any of the reliefs referred to in sub-section (1) relating to a wakf shall be instituted by any person or authority other than the Board without the consent in writing of the Board:

Provided that no such consent shall be required for the institution of a suit against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules or orders made thereunder."

1. Section 55, (Muslim) Wakfs Act, 1964.

1H.15. While the procedure for leave, as laid down in such laws, need not be disturbed, it is our intention that the extended scope (of section 92) should apply to suits under section 92, filed in respect of such trusts also. An express provision in this respect in section 92 does not, however, appear to be necessary.

Recommendation

1H.16. Accordingly, we recommend that section 92(1) should be revised as follows:-

"(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree.

[Rest as in existing section 92(1 )].

1H.17. We further recommend the insertion of the following new sub-section in section 92:

"(3) The circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy pres shall be as follows:-

(a) where the original purposes, in whole or in part

(i) have been as far as may be fulfilled; or

(ii) cannot be carried out, or not according to the directions given and to the spirits of the gift; or

(b) where the original purposes provide a use for part only of the property available by virtue of the gift; or

(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit the gift, be made applicable to common purposes; or

(d) where the original purposes were laid down

(i) by reference to as area which then was but has since ceased to be a unit for some other purpose, or

(ii) by reference to a class of persons or to an area which has, for any reason, since ceased to be suitable, regard being had to the spirit of the gift, or to be practicable in administering the gift; or

(e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided, for by other means; or

(ii) ceased, as being useless or harmful to the community or for other reasons, to be in law charitable, or

(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift".

Section 93

1H.18. Section 93 provides for the exercise outside Presidency towns of powers conferred by sections 91-92 on the Advocate-General. In view of our recommendation1 to substitute, in sections 91 and 92, the leave of the court in place of the sanction of the Advocate-General, section 93 becomes unnecessary.

1. See discussion as to section 92 and 92.

Recommendation

1H.19. We, therefore, recommend that section 93 should be deleted.